OAKLAND, Calif. (CN) — In the waning days of the Trump administration, a federal judge is wrestling with whether to vacate federal rules that allow employers to opt out of paying for birth control on religious or moral grounds.
“I’m going to go out on a limb and say it could well be that the Department of Health and Human Services will have a different perspective on these issues than the current one,” U.S. District Judge Haywood Gilliam said Wednesday.
He noted that California Attorney General Xavier Becerra is poised to become the new head of the HHS, uniquely positioning him to go from plaintiff to defendant in a protracted legal battle between the federal government and a California-led coalition of states over cost-free birth control.
The two rules at issue exempt employers with either “moral convictions” or “sincerely held religious beliefs” from providing contraceptive coverage as required by the 2010 Affordable Care Act, which mandates all women have access to preventative care.
The rules built on an exemption that originally applied only to churches. But the Health and Human Services extended that privilege in 2017 to family-owned, non-publicly traded corporations whose owners say that paying for birth control would violate their religious beliefs. Exempted entities no longer need to certify their objection or otherwise notify the federal government of their decision to stop providing coverage.
Gilliam previously granted an injunction temporarily barring the rules from being enforced in 13 states and the District of Columbia. One day later, another federal judge in Philadelphia issued a nationwide injunction. The Ninth Circuit upheld Gilliam’s injunction last year, and the Third Circuit upheld the nationwide one issued by U.S. District Judge Wendy Beetlestone.
The U.S. Supreme Court reversed the Third Circuit in July, with a majority ruling finding the administration has broad authority under the ACA to promulgate religious and moral exemptions to its contraceptive mandate.
With the injunction dissolved by the high court, Gilliam is now faced with the unenviable task of determining whether the exemptions are reasonable or arbitrary and capricious.
Gilliam seemed torn as to whether he should rule in the case or adopt a wait-and-see approach.
“It seems plain that in some number of days into the new administration we’re going to have some adjustment in the department’s approach on this,” he said. “That raises the question: What should I do in the interim? It’s very likely to be the case that very soon there is an effort to modify this rule.”
Supervising Deputy Attorney General Karli Eisenberg urged Gilliam to act now. “The court need not presume or guess what a new administration will do and when they will do it. Attorney General Becerra still has a senate confirmation process to get through and these rules are in effect now and impacting women now.”
The Trump administration estimates that 127,000 women would lose access to free birth control pills under the new rules.
Representing intervenors the Little Sisters of the Poor, a religious nonprofit operated by an order of Catholic nuns, attorney Mark Rienzi with The Becket Fund said he would prefer Gilliam not to defer ruling in the case, now more than three years old.
“We’re sitting here talking about a rule that the last new president was talking about early in his administration,’ Rienzi said. “We really do need to get to an answer if we can.”
Further complicating matters is an Obama-era accommodation allowing closely-held corporations with religious objections to avoid paying for birth control by having it covered by group health insurance plans. The Little Sisters, however, maintained that this accommodation made them “complicit” in providing contraception.
Rienzi asked that Gilliam rule in a way that lets employers take advantage of the accommodation while carving out an exemption for religious objectors like the Little Sisters.
“Experience and logic tells us that if somebody doesn’t object to the accommodation, there’s no reason in the world for them not to take it. It’s free stuff, paid for by somebody else,” he said.
“Every employer who has the option to get free stuff that’s generally popular with their employees is going to take advantage of it. So I don’t think it’s a real problem. I have no issue with a ruling that says this rule shouldn’t be read to extend to entities with no objection to the accommodation.”
Gilliam took the arguments under submission, saying, “I’m going to give some thought as to procedurally what the right way to proceed is. So you may hear from me or you may not hear from me for a while.”